How the Supreme Court Learned to Play Politics

Partisan judging is a team sport. A lot of it takes place off the court.

Midway through his Supreme Court confirmation hearings, Brett Kavanaugh switched teams. He began as a potential player for the Supreme Court Nine in the nonpartisan law league, telling the Senate Judiciary Committee on the first day of hearings, “A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” He ended a faithful member of a Federalist Society squad in the partisan politics league. The investigation of Christine Blasey Ford’s allegations of sexual assault, he later raved to the same committee, was “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” as well as “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” Gone was any air or even pretense of nonpartisanship. Kavanaugh appealed exclusively, and successfully, to the Republican Party.

The Company They Keep:
How Partisan Divisions
Came to the Supreme Court
by Neal Devins and Lawrence Baum
Oxford University Press, 264 pp.

Neal Devins and Lawrence Baum’s new book, The Company They Keep, seeks to explain why every member of the contemporary Supreme Court plays in the partisan politics league. The period following the retirement of Justices David Souter and John Paul Stevens is the first time in history that Supreme Court voting blocs correspond perfectly with the party of the appointing president. Bipartisan majorities and bipartisan dissents occurred in every major case decided by a fractured Court during the nineteenth and much of the twentieth centuries. Republican appointee Harry Blackmun and Democratic appointee Thurgood Marshall joined hands in the Roe v. Wade majority, as did Republican appointee William Rehnquist and Democratic appointee Byron White in the dissent. Hardly any Roberts Court decisions feature both bipartisan majorities and bipartisan dissents. Decisions like Trump v. Hawaii, in which the five conservative Republican appointees outvoted the four liberal Democratic appointees to uphold President Trump’s travel ban, are the norm.

Devins and Baum point to the usual suspects when explaining the increased partisanship of the Supreme Court. The Court is more partisan and polarized because both politics and the elites who disproportionately determine its course—and staff the federal judiciary—are more partisan and polarized. Contemporary presidents pay more attention to ideology when selecting Supreme Court justices than their predecessors did. Harry Truman appointed buddies; George W. Bush appointed movement conservatives. 

Courts were not so partisan through much of the twentieth century because most elites played in the same moderate liberal league. Both elite Republicans and elite Democrats during the New Deal and Great Society era favored racial equality, free speech, and secularism. The Warren Court articulated this elite consensus. In cases ranging from school segregation to school prayer to the rights of the accused, Republicans and Democrats on the Warren Court took the positions favored by the Republican and Democratic establishments even when those positions differed from those of a majority of citizens with less education, wealth, and social status. Some justices played on more activist teams than others, but divisions tended to be over which branch of government should pursue moderately liberal policies, not over the constitutionality of New Deal and Great Society liberalism. The partisan Roberts Court differs from the bipartisan Warren Court because elite Democrats and Republicans now differ on the crucial constitutional issues facing the nation.

The Company They Keep breaks from the literature on Supreme Court decisionmaking by describing judicial partisanship as a social phenomenon—a consequence, in part, of justices wanting approval from their elite peers. Devins, a law professor at William & Mary, and Baum, a political scientist at Ohio State, develop their argument by importing insights from social psychology. Everyone wants to be liked, social psychologists observe. Supreme Court justices are no different. If people particularly want to be liked by their peers, then Supreme Court justices will be “particularly interested in being held in esteem by the elite communities they are a part of.”

Supreme Court justices are not simply individuals, but members of teams that play in partisan political leagues. That the current majority plays for the conservative Federalist Society team may explain the direction of the law far more than a mere desire for approval.

That people crave approval is, of course, as much common sense as social science. And Devins and Baum admit that no decisive proof of their thesis exists. They note, however, that justices frequently appear before elite audiences, and that many seem to care greatly how they are perceived by prominent reporters and leading law professors. They argue that conservatives may have been right to suspect Justices Harry Blackmun and Anthony Kennedy of drifting to more liberal positions over time in response to accolades from a left-leaning media, left-leaning academics, and prominent Washington socialites. On the other hand, Devins and Baum suggest that the consistent conservatism of Antonin Scalia and Clarence Thomas may be partly a consequence of their desire to be celebrated by the conservative elites who populate such organizations as the Federalist Society. 

Whether Devins and Baum are correct to think that the psychological need for elite approval explains Supreme Court decisionmaking is open to question. Their argument proceeds largely by speculation and may not be falsifiable. Supreme Court justices looking for adulation are never lonely. When their decisions consistently align with the wishes of their party, prominent elites hail them for advancing the “true” vision of the Constitution. When they occasionally break from their partisan allies, other prominent elites hail them for being independent. 

Nevertheless, Devins and Baum put Supreme Court watchers on the right track by focusing on the justices not simply as individuals, but as members of teams that play in partisan political leagues. That the majority on the Roberts Court plays for the conservative Federalist Society team may explain the direction of constitutional law far more than a mere desire for approval. Conservative justices advance the cause of their team by vigorously interfering with federal and state campaign finance restrictions and refusing to interfere with partisan gerrymanders. Team members provide the justices with cues as to what constitutes a conservative position. (Conservatives were initially divided, for example, over whether commercial advertising was constitutionally protected speech. As more conservatives inside and outside the Court came to insist on constitutional protection, younger conservatives began to identify protection as the appropriate conservative position.) The conservative justices rely on conservative legal historians for information about the original understanding of the framers, conservative social scientists for information about the impact of race-conscious measures, and conservative law professors for new legal arguments. Scalia told an interviewer in 2013 that he only read the Wall Street Journal and the Washington Times because the New York Times and the Washington Post were too liberal. Other justices may read more widely, but they are far more likely to rely heavily on Federalist Society team members for information about history, politics, and law than on elites who play for other teams.

To run the metaphor even more into the ground, we might speak of a Federalist Society division, fielding multiple squads within the partisan political league. Roberts plays for a team of conservatives who want a Court that moves slowly but surely toward a conservative constitutional vision, while Thomas’s team would upend the administrative state overnight in an effort to return to a reactionary vision of a lost constitutional order. Alito is part of a cultural conservative roster that has been known to occasionally spar with more libertarian Federalist Society members. 

Although the dominant team in the Federalist Society division has yet to be determined, there is practically no chance that a conservative justice switches to a centrist or liberal team. Few elite journalists or professors across the political spectrum had anything good to say about the system of capital punishment during the 1970s and ’80s, even as they disputed judicial responsibility for that system. The result was that even conservative justices on the Supreme Court were bombarded with cues, information, and legal arguments justifying limits on the death penalty, if not abolition. Members of the contemporary Federalist Society team, by comparison, play with people who are certain that murderers ought to be punished by death. They are bombarded with inputs justifying capital punishment. Thus, the capital punishment system survives, warts and all. The Company They Keep reminds us that today’s Supreme Court justices, far from calling balls and strikes, are very much in the game. And they’re playing to win.

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Mark A. Graber

Mark A. Graber is the Regents Professor at the University of Maryland Carey School of Law and the coeditor of, most recently, Constitutional Democracy in Crisis?